in parties the determination of the Orphans' Court is not res judicata here.
Comment i to Section 79 of the Restatement of Judgments says:
'Where there are more or fewer parties in successive actions. If a valid judgment has been rendered in a proceeding involving a number of different parties the rules of res judicata apply
between such parties in subsequent proceedings in which there are additional or fewer parties, if but only if * * * they were adversaries in the first action. It is not essential that there be complete identity of the parties in the two proceedings. * * * It is essential only that the persons between whom the rules of res judicata are claimed to be effective should be the same in the two actions. * * *'
Both in the Orphans' Court and here the husband and wife actively opposed and oppose each other. Since they are adversaries both there and here, the rules of res judicata apply.
BAR OF LACHES OR STATUTE OF LIMITATIONS
The husband contends that the present action commenced August 3, 1961, is barred by the Pennsylvania six-year statute of limitations, Act of March 27, 1713, 1 Sm.L. 76, § 1; 12 P.S. 31. The wife contends that this action, being for an accounting, is a proceeding equitable in nature and therefore is not governed by the statute of limitations but can be barred only by laches. The husband counters this with the contention that the action is barred by both, and it matters not whether the action is at law or in equity.
The parties agree, and it is clear from an examination of the complaint, that this is a proceeding for an accounting. The Pennsylvania Act of October 13, 1840, P.L. 1, § 19, 17 P.S. § 284,
'The supreme court, the several district courts and courts of common pleas, within this commonwealth, shall have all the powers and jurisdiction of courts of chancery in settling partnership accounts, and such other accounts and claims, as by the common law and usages of this commonwealth, have heretofore been settled by the action of account render; and it shall be in the power of the party desirous to commence such action, to proceed either by bill in chancery, or at common law * * *.'
There is no need to review here the history of the ingenious methods devised by the Pennsylvania bench and bar to make up for the long absence of courts in equity in that jurisdiction. Suffice it to say that the Act of 1840 merely added an equitable remedy for an accounting to the existing action at law.
The Pennsylvania Supreme Court, speaking through Mr. Justice Stern, said in Ebbert v. Plymouth Oil Company, 348 Pa. 129, 134, 135, 34 A.2d 493, 495, 496 (1943):
'* * * But in any event, and even if there is no statute of limitations which in terms governs this action, it is well established that equity will frequently adopt and apply the statute of limitations which controls analogous proceedings at law. * * * This is especially, if not invariably, true if the cause of action is not exclusively cognizable in equity * * *, which is the situation here, because, where an accounting is desired, it may be obtained in a common-law proceeding * * *. Equity takes jurisdiction (under the Act of October 13, 1840, P.L. 1, sec. 19, 17 P.S. 284) only when the accounts are mutual or complicated, or when discovery
is needed and is material to the relief. * * * Because of this concurrent jurisdiction the statute of limitations is generally held to be a bar to proceedings in equity for an accounting when it would be a bar to an action at common law for the same matter. * * * The action for an accounting at law, being on the same plane, in practice, as an action in assumpsit * * * is subject to the same six-year limitation. * * *'
Thus, whether the present action is at law or in equity, it is subject to the six-year limitation whether by direct operation of the statute of limitations or by the doctrine of laches, which applies by analogy the term fixed by the statute of limitations.
Since the wife has been mentally incompetent, her right to litigate has been tolled and section 5 of the Act of March 27, 1713, 1 Sm.L. 76, 12 P.S. § 35
must be considered. However, since it has been determined by the Orphans' Court that the wife has been mentally competent since May 23, 1955, and since the present action was brought on August 3, 1961, the result is the same whether section 1 (the limitation section) of the statute applies or whether section 5 (the tolling section) applies.
The facts stated herein are taken from an affidavit filed by defendant's counsel to which no opposing affidavit has been filed. It appears to me that there is no serious disagreement in reference to the facts stated herein. Consequently, I am making use of amended Rule 56 of the Fed.R.Civ.P. which permits findings of fact to be made upon statements in an affidavit, even though the amended rule does not go into effect until July 1, 1963. Of course, there is and was disagreement as to whether Mrs. Girsh was mentally competent when she executed the release. On this question of fact I am making no finding, but I rely upon the legal principle of res judicata as previously explained herein.
AND NOW, June 5, 1963, defendant's motion for summary judgment is granted and the Clerk is directed to enter summary judgment in favor of the defendant, Myers L. Girsh, and against the plaintiff, Miriam H. Girsh.